While the differing interests and methods of the shore fishery and the vessel fishery make it impossible that the regulation of the one should be entirely given to the other, yet if the mutual obligations of the treaty of 1871 are to be maintained, the United States' Government would glady co-operate with the Government of Her Britannic Majesty in any effort to make those regulations a matter of reciprocal convenience and right, a means of preserving the fisheries at their highest point of production, and of conciliating a community of interest by a just proportion of advantages and profits.

39

Her Majesty's Government do not interpret these expressions in any sense derogatory to the sovereign authority of Great Britain in the territorial waters of Newfoundland, by which only regulations having the force of law within those waters can be made. So regarding the proposal, they are pleased not only to recognize in it an indication that the desire of Her Majesty's Government to arrive at a friendly and speedy settlement of this question is fully reciprocated by the Government of the United States, but also to discern in it the basis of a practical settlement of the difficulty; and I have the honour to request that you will inform Mr. Evarts that Her Majesty's Government, with a view to avoiding further discussion and future misunderstandings, are quite willing to confer with the Government of the United States respecting the establishment of regulations under which the subjects of both parties to the Treaty of Washington shall have the full and equal enjoyment of any fishery which under that treaty is to be used in common. The duty of enacting and enforcing such regulations, when agreed upon, would, of course, rest with the Power having the sovereignty of the shore and waters in each case.

CESSATION OF DISCUSSION, 1880-1905.

Discussion as to regulations was apparently found to be unnecessary, and was never undertaken; Mr. Blaine succeeded Mr. Evarts as Secretary of State; indemnity for the Fortune Bay affair was agreed upon (with special reservation of respective opinions as to treaty rights); and the suggestion of joint regulations disappeared. British cruisers continued to patrol the fishing grounds; the local laws were enforced as before; and for many years no complaint or protest was heard of.

CORRESPONDENCE, 1905-6.

1905.-The United States objected (19th October, 1905) to a Newfoundland statute, upon the ground that, under its provisions, United States fishing vessels might be seized for doing that which the treaty permitted them to do. (App., p. 757.) In reply. Sir Edward Grey (2nd February, 1906) pointed out that the clauses of the statute to which objection had been taken, were controlled by another clause which preserved (App., p. 494) —

the rights and privileges granted by treaty to the subjects of any State in amity with His Majesty.

On behalf of the United States, Mr. Root in his despatch of 19th October, 1905, asserted that (App., p. 492)—

The only concern of the Government of Newfoundland with such a vessel (a United States vessel) is to call for proper evidence that she is an American vessel, and, therefore, entitled to exercise 40 the treaty right, and to have her refrain from violating any laws of Newfoundland not inconsistent with the treaty.

To that statement, admitting (as it does) that some Newfoundland laws may properly be enforced against United States fishermen, no objection could be taken.

Sir Edward Grey, in his reply (2nd February, 1906), quoted it with approval, and said that (App., p. 495)—

His Majesty's Government, however, agree that no law of Newfoundland should be enforced on American fishermen which is inconsistent with the rights under the convention.

They hold that the only ground on which the application of any provisions of the colonial law to American vessels engaged in the fishery can be objected to, is that it unreasonably interferes with the exercise of the American right of fishery.

What seemed to remain, therefore, was not a question of principle, but the application of the principle. In his later letter (the 30th June, 1906), however, Mr. Root dispelled that idea by declaring that (App., p. 499)—

The Government of the United States fails to find in the Treaty any grant of right to the makers of colonial law to interfere at all. whether reasonably or unreasonably, with the exercise of the American rights of fishery, or any right to determine what would be a reasonable interference with the exercise of that American right if there could be any interference.

And referring to some specific local laws, he added (App., p. 501) :

If it be shown that these things are reasonable, the Government of the United States will agree to them; but it cannot submit to have them imposed upon it without its consent.

And thus have arisen the issues which the Tribunal is requested to consider.

ARGUMENT.

It is submitted that the contentions of His Majesty's Government are supported by a consideration of the terms of the treaty of 1818, and by reference to usage in its analogous cases.

As to the general principle which governs the construction of treaties such as this, it is submitted that the mere grant of a right or liberty to subjects of one State to do certain acts in the territory of another State, does not itself confer any exemption from the

41

jurisdiction of the State in which those acts are done. There

is hardly a nation in the world which is not bound by treaty to permit the subjects of some other Power to have access to its territories for some purposes-a liberty to trade is a common instance. But it has never been contended that grants such as these carry with them any immunity from the laws of the country which makes them, or that aliens trading under treaty liberties are not subject to the municipal laws which regulate the trade of the country. Grants of this kind are made on the understanding that they must be exercised subject to such laws and regulations as apply to the subjects of the State which makes them. No State can be presumed to have been willing to put aliens in a better position than its own subjects, or to have renounced the right to regulate trade within its own territories, in the absence of express words to that effect, and the same argument applies equally to other liberties, including such a liberty as that which is now under discussion. This principle is clearly stated, and is illustrated by a reference to the very matter now in dispute, by Mr. Hall in a passage to which His Majesty's Government begs leave to refer the tribunal:

66

Whenever, or in so far as, a state does not contract itself out of its fundamental legal rights by express language, a treaty must be so construed as to give effect to those rights. Thus, for example, no treaty can be taken to restrict by implication the exercise of rights of sovereignty, or property, or self-preservation. Any restriction of such rights must be effected in a clear and distinct manner. A case illustrative of this rule is afforded by a recent dispute between Great Britain and the United States. By the treaty of Washington of 1871, it was provided that the inhabitants of the United States should have liberty, in common with the subjects of Great Britain, to take fish upon the Atlantic coasts of British North America. Subsequently to the conclusion of the treaty, the Legislature of Newfoundland passed laws with the object of preserving the fish off the shores of the colony; a close time was instituted, a minimum size of mesh was prescribed for nets, and a certain mode of using the seine was prohibited. These regulations were disregarded by fishermen of the United States; disturbances occurred at Fortune Bay between them and the colonial fishermen, and the matter became a subject of diplomatic correspondence, in the course of which the scope of the treaty came under discussion. It was argued by the United States that the fishery rights conceded by the treaty were absolute, and were to be

42

'exercised wholly free from the restraints and regulations of the statutes of Newfoundland now set up as authority over our fishermen, and from any other regulations of fishing now in force or that may hereafter be enacted by that Government;' in other words, it was contended that the simple grant to foreign sub

92909-S. Doc. 870, 61-3. vol 4- -4

jects of the right to enjoy certain national property in common with the subjects of the state carries with it by implication an entire surrender, in so far as the property in question is concerned, of one of the highest rights of sovereignty, viz., the right of legislation. That the American Government should have put forward the claim is scarcely intelligible. There can be no question that no more could be demanded than that American citizens should not be subjected to laws or regulations, either affecting them alone, or enacted for the purpose of putting them at a disadvantage."

a

The transactions between Great Britain and the United States are wholly inconsistent with the contention that liberties granted to aliens of themselves confer exemption from municipal laws.

ANALOGIES TREATY OF 1783.

The treaty of 1783.-In the treaty of 1783 (between the United Kingdom and the United States) there is the following section (App., p. 13):

It is agreed that the Congress shall earnestly recommend it to the Legislatures of the respective States, to provide for the restitution of all estates, rights, and properties which have been confiscated belonging to real British Subjects; and also of the estates, rights, and properties of persons resident in districts in the possession of His Majesty's arms, and who have not borne arms against the said United States: and that Persons of any other description shall have free liberty to go to any part or parts of any of the thirteen United States, and therein to remain twelve months, unmolested, in their endeavours to obtain the restitution of such of their estates, rights, and properties as may have been confiscated;

No one imagined that these British subjects were to be exempted from United States law, or that they were not to be "molested” if they did not conform to it. No one ever did pretend that the United States would require British concurrence before enacting laws applicable to such people. It might, indeed, have been urged that, if British subjects were to be "unmolested" they must be free from all regulations. But the sufficient reply would have been that the treaty gave them no other freedom than that enjoyed by United States citizens, when engaged in similar employment.

Jay's treaty of 1794.-Prior to the treaty of 1783 (at the end of the revolutionary war) the territory lying south of the great lakes in America, and between the Ohio and the Mississippi, was a part of the British Empire. It was within the boundaries of Canada (forming part of the Province of Quebec); and at the end of the revolutionary war was very largely (by virtue of military occupation of various

@W. E. Hall, "International Law," 5th ed., pp. 339–340.

posts there), in possession of Great Britain. By the treaty of 1783, Great Britain ceded the territory to the United States; but evacuation of it was delayed pending the execution by the United States of other stipulations of the agreement. The later treaty of 1794 (Jay's treaty) provided for delivery up of the territory to the United States, and as to the British people there, section two provided as follows (App., p. 16) :–

All settlers and traders, within the precincts or jurisdiction of the said posts, shall continue to enjoy unmolested, all their property of every kind, and shall be protected therein. They shall be at full liberty to remain there, or to remove with all or any part of their effects; and it shall also be free to them to sell their lands, houses or effects, or to retain the property thereof, at their discretion; such of them as shall continue to reside within the said boundary lines, shall not be compelled to become citizens of the United States, or to take any oath of allegiance to the Government thereof; but they shall be at full liberty so to do if they think proper, and they shall make and declare their election within one year after the evacuation aforesaid. And all persons who shall continue there after the expiration of the said year, without having declared their intention of remaining subjects of His Britannic Majesty, shall be considered as having elected to become citizens of the United States.

This is a case which presents many analogies to that under discussion. Of the territory it refers to (much more accurately than of the fisheries now under discussion), it might be said that prior to the war it had been the common property of the British Empire; that, by the treaty, the territory was assigned to the United States, subject to certain rights of certain British subjects; that there is not in the treaty any grant of right to the United States to interfere at all, whether reasonably or unreasonably, with the exercise of the British rights in the territory; and that, therefore, the United States could not have had any authority to regulate the rights of citizens of Great Britain within the territory.

44

To any such argument, the answer of the United States would have been that which His Majesty's Government now makes to the United States: Liberty to foreigners to trade, or fish, or carry on any other occupation, in national territory or waters is not an abandonment of authority to regulate the actions of those foreigners there; in order to maintain and continue that power of regulation, no grant of it from the foreign Power is necessary; such foreigners must conform to the laws of the country to which they go, or in which they remain; and the only obligation imposed by the treaty upon the sovereign Power is that it will not so exercise its authority as to nullify the liberty which it has accorded.

Another clause in the treaty of 1794 was as follows (App., p. 16) :— It is agreed that it shall at all times be free to His Majesty's subjects, and to the citizens of the United States, and also to the